Brackstone v Police No. Scgrg-98-1647 Judgment No. S35

[1999] SASC 35

BRACKSTONE v POLICE
[1999] SASC 35
Magistrates Appeal
Nyland J

1 This is an appeal against conviction and sentence. The appellant was charged on complaint that on 19 August 1998 at Lochiel in the said State he had in his possession firearms, namely two semi-automatic rimfire rifles and a side by side shotgun whilst not holding a licence authorising the possession of those firearms, contrary to the provisions of s11(1) of the Firearms Act 1977.
2 The appellant appeared before a stipendiary magistrate in the Magistrates Court at Kadina on 11 November 1998 and pleaded guilty to the charge.  On the entry of his plea of guilty, a further charge of unlawful possession laid on the same complaint was withdrawn.  The appellant was convicted and fined the sum of $100. 
3 The appellant was unrepresented in the Magistrates Court and on the hearing of this appeal.  In his Notice of Appeal, he said that "without legal representation I misunderstood what happened at court.  Although I entered a plea of guilty I wished for the presiding magistrate to consider my submissions which, if accepted, would have constituted a defence to the charge".  On the hearing of this appeal, therefore, he sought an order setting aside his plea of guilty to enable him to defend the proceedings against him.  The appellant admitted that he was in possession of the firearms at the relevant time and that he did not have a licence for them.  The thrust of his argument was that he was not obliged to have a licence as the firearms were held by him in the Province of Bumbunga.  This was an independent province which was not part of South Australia and therefore South Australian law did not apply.
4 The appellant explained that the Province of Bumbunga was an area covering about eight or nine acres near Lochiel.  It was established by him in pursuance of his desire to retain his British identity.  It seceded from South Australia in 1975.  The appellant is the governor of the province and the other residents therein are members of his family.  The appellant provided the court with an aerial photograph of the province, which for convenience I exhibit hereto.  It can be seen therefrom that the province is laid out as a map of England.  The area depicted in the photograph covers approximately 92,000 square feet.  It is to scale.  The appellant said that various features depicted thereon are outlined by over 50,000 strawberry plants.  The appellant said that the province issued its own postage stamps (although it seemed they were only valid as far as Snowtown or Lochiel).  He said that he was not required to pay water rates, despite being serviced by mains water, and he was not compelled to vote.  He did, however, pay for electricity supplied by ETSA.
5 The appellant provided the court with three letters from South Australian Members of Parliament to substantiate his claim that Bumbunga was officially recognised as a separate province.  These comprised a letter dated 26 November 1985 from Mr John Olsen (then the Leader of the Opposition in the House of Assembly); a letter dated 30 June 1997 from the Honourable Rob Kerin (then Minister for Primary Industries and Minister Assisting for Regional Development and Small Business); and a letter dated 4 August 1997 from the Honourable Dean Brown (in his capacity as Minister for Aboriginal Affairs). These letters appear to have been written in response to correspondence from the appellant expressing his concerns and offering his ideas with respect to various issues unrelated to this particular matter.  Each of those letters is addressed to the appellant as the Governor of the Province of Bumbunga.  None of them, however, deals specifically with the issue of the legal status of the province.  They do no more than indicate general recognition of the province as the appellant’s address.
6 The appellant also endeavoured to confirm the legality of his Province by writing to the Attorney-General and the Premier of this State.  He interpreted the absence of any response from them as confirmation of its legal status.  The appellant further explained that he had possessed licensed firearms for 50 years and that for the last 23 years all of them had been registered to the Province of Bumbunga.  This evidence was relied upon by the appellant in support of his contention that Bumbunga is a separate province, but clearly runs counter to his present argument that he was not required to have a firearms licence on the occasion which is the subject of these proceedings.
7 Ms Williams, who appeared for the respondent on the hearing of the appeal, correctly submitted that an appeal against conviction founded on a plea of guilty would not lie unless it appeared: (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it; or (2) that upon admitted facts he could not in law have been convicted of the offence charged.  In very helpful and concise submissions, she submitted that save and except where one of the above grounds was made out, or where there had been a miscarriage of justice due to some other circumstance, the appellate court ought not to set aside a conviction founded on a plea of guilty.  She further submitted that the circumstances in which a conviction founded on a guilty plea might be set aside had to be "exceptional" and this was not such a case.
8 Ms Williams has clearly stated the law which is to be applied with respect to this appeal.  The appellant has an obvious commitment to his "province" and has undertaken a considerable amount of work thereon in pursuance of his goal to preserve his English heritage.  That is evident from the photograph of the property which I have annexed to this judgment.  There has been no evidence produced, however, to support the appellant’s assertion that this area has achieved statutory recognition as a separate State.  South Australian law, therefore continues to apply.  The appellant, on the hearing of this appeal, did not produce any evidence which discloses a defence known to law.  I therefore dismiss the appeal and confirm the conviction and fine.  I make no order as to costs.